Road Rights – When A Bigger Brother Is Better

State and Federal laws often have the cyclist’s back—especially when local laws don’t.

By Bob Mionske

Most cyclists, it seems, know more about traffic laws, and about their right to the road, than does the motoring public. And sometimes cyclists are better informed on the law, and their rights, than the officers who enforce the law. Developing some expertise about one’s responsibilities and rights comes with the territory—especially when it’s common for others to misrepresent the former and deny the existence of the latter.

But what happens when a local law is passed that seemingly conflicts with what we know to be our rights under state law? Is the local law valid? ((Recently, Seattle-area cyclists were confronted with this issue when the City of Mercer Island, Washington proposed an ordinance which would have required cyclists to ride single file despite a state law that allows cyclists to ride two abreast. The proposed ordinance would also have required cyclists riding in groups of four or more to pull off the road to allow a motor vehicle to pass, “where passing is unsafe.”

As might be expected, cyclists are not only aware of their rights, they are prepared and determined to defend them. Seattle-area cyclists are no exception—they began by writing to the city council to express their opposition to the proposed ordinance. In fact, of 121 emails received by Councilmember Bruce Bassett, only one was in favor of the ordinance; the other 120 emails were opposed. When the City Council held its hearing on the proposed ordinance, cyclists showed up in force to voice their concerns.

And the Mercer Island City Council listened; instead of approving the ordinance, the council members approved a motion directing city staff to “draft a bicycle safety ordinance based on input provided by the council tonight.” The input from the city council identified three criteria that the new ordinance must meet:

It must not be redundant or restate state law

It must require cyclists to ride singe file when a vehicle or bicycle wants to pass

Its language should not resemble the language requiring cyclists in groups of four or more to pull off the road when a driver wants to pass

Although Seattle-area cyclists will likely be riding under a more bicycle-friendly ordinance on Mercer Island in the near future, the larger issue still remains—what happens when a local law seemingly conflicts with state law? This is not just an issue limited to Mercer Island. Cyclists who ride in Jupiter Island, Florida dodged a similar bullet last September, when the city council backed off a proposed ordinance after local cyclists reached an agreement with Jupiter Island Police Chief that voluntarily restricts the size of group rides.

Under the ordinance the Jupiter Island City Council was considering, cyclists would have been required to:

Obtain a parade permit for all group rides with more than 15 cyclists

Equip their bicycles with a bell or horn, a four-foot-tall flag, and reflectors

The thread that runs through each of these ordinances is that they often seem to conflict with state law—and under state traffic laws, when authority to enact local traffic ordinances is granted by the state to local government, it is with the caveat that the local laws must be consistent with state law. But if that is the case, how can a local government pass a traffic law that conflicts with state law?

The short answer is they can’t. Or more accurately, if a local government passes a traffic law that conflicts with state law, that law has no effect. It can’t be enforced, and you can’t be found guilty of violating it.

In Jupiter Island, the city council did not pass its ordinance, but most likely would have, had cyclists not voluntarily restricted their riding in Jupiter Island. In my opinion, parts of this ordinance were clearly in conflict with state law, and would have had no effect had it been passed. In particular, the city proposed certain equipment requirements for bicycles operated within the jurisdiction of Jupiter Island. I believe that this part of the ordinance is clearly in conflict with state law. The state (and federal) governments, and not municipalities, determine vehicle equipment standards, and those standards apply uniformly throughout the state. Municipalities simply have no authority to set different vehicle equipment standards.

One of the things that I find most interesting about the Jupiter Island ordinance is the town’s prior history of passing laws that it has no authority to enact or enforce. Prior to its threats to pass an ordinance restricting cyclists, Jupiter Island passed an ordinance regulating use of the beach, despite the fact that the county, and not the town, has the authority to regulate beach use. After Surfriderthreatened to sue, Jupiter Island quietly backed down, rescinding its ordinance. I believe that had Jupiter Island passed its cycling ordinance, any lawsuit challenging it would have resulted in a finding that it was in conflict with state law, in part, or in whole. Given their actions when challenged by Surfrider, it is likely that Jupiter Island would have backed down on at least the clearly unenforceable aspects of the cycling ordinance as well.

But sometimes the legality of the ordinance in question is unclear—does the local ordinance really conflict with state law, or does it just seem at first glance to be in conflict? ((In Barrington Hills, cyclists are prohibited from riding two abreast, even though the Illinois vehicle code states that “persons riding bicycles or motorized pedal cycles upon a roadway shall not ride more than two abreast….” So is the Barrington Hills ordinance consistent with state law, or in contradiction of state law? There are arguments for and against, but to my knowledge, it hasn’t been challenged in court, so for now, the question remains unsettled.

In Mercer Island, the requirement to ride single file is similar to the Barrington Hills ordinance. Under Washington law, “persons riding bicycles upon a roadway shall not ride more than two abreast….” This language is virtually identical to the language of Illinois’ statute. However, unlike Barrington Hills, Mercer Island no longer proposes to require single file riding at all times. Instead, if the ordinance is passed, cyclists will be required to ride single file when another vehicle operator wants to pass. As with the Barrington Hills ordinance, there are arguments for and against the proposition that this ordinance is consistent with state law. The requirement to pull off the road appears to have been scrapped altogether.

In Jupiter Island, there is only one aspect of the proposed ordinance that at first glance seems to have been potentially consistent with state law: The City proposed to require cyclists obtain a parade permit for group rides with more than 15 cyclists. Florida law allows municipalities to regulate “processions or assemblages”; if the ordinance had been challenged in court, this portion of the ordinance may have been found to be consistent with state law, depending upon whether a judge would agree that a group ride is included under what the Florida Legislature meant by a “procession or assemblage.” Although it is not binding in Florida, a similar rule in New York City was recently upheld by a judge after it was challenged by the Five Boroughs Bicycle Club.

However, the city also proposed to restrict cyclists to riding within certain specified hours. It is unclear whether this part of the ordinance was consistent with state law. If the ordinance proposed to limit “parades” to certain hours, that may have been consistent with state law. However, if the ordinance applied to all cyclists, in my view that would have been inconsistent with state law, under which cyclists have all of the rights and duties applicable to drivers of any other vehicle.

Finally, the city proposed to require group rides to keep an unspecified distance between separate groups of cyclists. If this part of the ordinance was addressing group rides classified by the ordinance as “parades,” it may not have been in conflict with state law. However, if it applied to all cyclists across the board, I believe it would have been as unenforceable as a law requiring all “groups” of motorists to keep a specified distance from all other “groups” of motorists.

To my knowledge, these issues of law raised by the proposed Jupiter Island ordinance have not yet been tested in court, and thus, for now they remain an unsettled area of the law.

These are just three examples of local laws regulating bicycles that seemingly conflict with state law; there may be others out there (and if you know of any, please let me know about them). This is an issue that will continue to confront cyclists in locales across the country, as municipalities attempt to resolve conflicts between cyclists and motorists—and depending on the municipality, those conflicts may be unfairly resolved with one-sided restrictions on cyclists that are inconsistent with state law. As Seattle-area cyclists have shown, it is incumbent upon us to organize in opposition to unfair laws. And when municipalities pass laws that are clearly in conflict with state (or federal) law, it is incumbent upon us to challenge those laws, as New York City cyclists have shown. Although the judge hearing their case ruled against them, the ruling has no precedent-setting effect, and thus, the loss was not worse than the rule they were challenging.

We should also keep in mind that these more restrictive local ordinances are typically enacted in response to cyclist behavior—specifically, group rides with cyclists riding more than two abreast—that other road users take umbrage with. By riding within the law, and extending basic courtesies to others on the road, we can prevent the problems that lead to calls for local government to enact local ordinances restricting our right to the road.

Bob Mionske is a former competitive cyclist who represented the U.S. at the 1988 Olympic games (where he finished fourth in the road race), the 1992 Olympics, as well as winning the 1990 national championship road race.

After retiring from racing in 1993, he coached the Saturn Professional Cycling team for one year before heading off to law school. Mionske’s practice is now split between personal-injury work, representing professional athletes as an agent and other legal issues facing endurance athletes (traffic violations, contract, criminal charges, intellectual property, etc).

Mionske is also the author of Bicycling and the Law, designed to be the primary resource for cyclists to consult when faced with a legal question. It provides readers with the knowledge to avoid many legal problems in the first place, and informs them of their rights, their responsibilities, and what steps they can take if they do encounter a legal problem.

If you have a cycling-related legal question, please send it to mionskelaw@hotmail.com Bob will answer as many of these questions privately as he can. He will also select a few questions each week to answer in this column. General bicycle-accident advice can be found at www.bicyclelaw.com.

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The information provided in the “Road Rights” column is not legal advice. The information provided on this public web site is provided solely for the general interest of the visitors to this web site. The information contained in the column applies to general principles of American jurisprudence and may not reflect current legal developments or statutory changes in the various jurisdictions and therefore should not be relied upon or interpreted as legal advice. Understand that reading the information contained in this column does not mean you have established an attorney-client relationship with attorney Bob Mionske. Readers of this column should not act upon any information contained in the web site without first seeking the advice of legal counsel.